PREETI SINGH vs NATIONAL MEDICAL COMMISSION & ORS.

2024-03-04 Information

$~80
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 3259/2024
PREETI SINGH ….. Petitioner
Through: Mr. Vishal Raj Sehijpal, Mr. Purushendra Bhardwaj, Advs., with petitioner in person.

versus

NATIONAL MEDICAL COMMISSION
& ORS. ….. Respondents
Through: Mr. T. Singhdev, Mr. Bhanu Gulati, Ms. Anum Hussain, Mr. Abhijit Chakravarty, Mr. Aabhaas Sukramani, Ms. Kamanpreet Kaur, Advs. for R-1.
Mr. Praveen Khattar, Adv. for R-3.

CORAM:
HON’BLE MR. JUSTICE C. HARI SHANKAR

J U D G M E N T (O R A L)
% 04.03.2024

1. The petitioner passed her XII Class exam, conducted by the Central Board of Secondary Education (CBSE), in 2007. The marksheet issued by the CBSE at that stage, is reproduced thus:

Sub Code
Subject
Marks Obtained

Positional Grade

TH
PR
Total
Total in Words

301
English Core
052
XXX
052
Fifty Two
C2
302
Hindi core
061
XXX
061
Sixty One
C2
043
Chemistry
023
028
051
Fifty One
D2
042
Physics
043
028
071
Seventy One
B2
049
Painting
023
064
087
Eighty Seven
B1
044
Biology
013
029
042FT
Forty Two
E
500
Work Experience

B1
502
Phy & Health Educa

C1
503
General Studies

Abbreviations

AB: Absent in the subject Result: Pass
Ex: Exempted
FP: Fail in Practical
FT: Fail in Theory

Dated: 06-08-2017

2. At the reverse of the marksheet, the following instructions by the CBSE are to be found:
1. The grades have been awarded on a Nine-point scale as follows:

A-1 Top 1/8th of the passed candidates
A-2 Next 1/8th of the passed candidates
B-1 Next 1/8th of the passed candidates
B-2 Next 1/8th of the passed candidates
C-1 Next 1/8th of the passed candidates
C-2 Next 1/8th of the passed candidates
D-1 Next 1/8th of the passed candidates
D-2 Next 1/8th of the passed candidates
E: Failed candidates
2(a). Maximum marks for each subject of external examination are 100. Minimum pass marks in each subject are 33%. In case of a subject involving practical work, a candidate must obtain 33% marks in theory and 33% marks in practical separately in addition to 33% marks in aggregate in order to qualify in that subject.

3. I may also refer, in this context, to Clause 38(b) of the Scheme of Examination and pass criteria issued by the CBSE, which clarifies, similarly, thus:
(v) For awarding the grades, the Board shall put all the passed students in a rank order and will award grades as follows:

4. Thus, it is clear that the petitioner has failed in her Biology paper in class XII.

5. On 9 October 2011, the petitioner applied to the Medical Council of India (MCI) for grant of an Eligibility Certificate to enable the petitioner to obtain her MBBS from the Tribhuvan University, Nepal. The application form submitted by the petitioner on that occasion has not been placed on record by the petitioner in these proceedings. The petitioner had also not placed the application form on record in W.P. (C) 12426/2023, which is a cognate petition which the petitioner has chosen to withdraw today. It has, however, been placed on record by the NMC with its counter-affidavit filed in that case.

6. The details entered by the petitioner in respect of her performance in Class XII, in her application form for the Eligibility Certificate, may be reproduced thus:
12th Class/Intermediate or 10+ 2 details

* School Name & Address Rasphil Academy, Kalyanpur, Lucknow
* Board: Central Board of Secondary Educ..
* Roll No. 5696809
* Date of joining: July 2006 Date of passing: 06-08-2007
* School Code no. 08966

Subjects
Maximum Marks
Theory Practical
Marks obtained
Theory Practical
% Result
Pass/Fail
English
100
–
52
–
52
Physics
70
30
43
28
71
Chemistry
70
30
23
28
51
Biology
70
30
13
29
42
PCB Total
310
90
131
85
216

7. Thus, it is seen that the petitioner did not mention, alongside the marks obtained by her against the individual subjects in class XII, whether she had passed or failed, though the application form specifically required her to do so. In view of the applicable Regulations to which I would presently advert it cannot be gainsaid that, had she done so, there was no question of her having been issued the Eligibility Certificate. The Eligibility Certificate was, therefore, obtained by omitting to mention the fact of the petitioner having failed in her Class XII Biology paper, despite the application form specifically requiring her to do so.

8. On 19 February 2014, the petitioner was issued an Eligibility Certificate by the MCI in terms of the Foreign Medical Institutions Regulations, 2002 (the FMI Regulations hereinafter), framed under Sections 12 and 13(4B) of the Indian Medical Council Act 1956 (the IMC Act), declaring her eligible to obtain a Primary Medical Qualification (PMQ) from a foreign institution.

9. Even before the Eligibility Certificate was issued, the petitioner had already travelled to Nepal. She completed her course from the Tribhuvan University, Nepal in 2022 and a pass certificate was issued by the University.

10. The petitioner returned to India and underwent the Foreign Medical Graduate Examination (FMGE), which is a pre-requisite to enable her to practice medicine in India as a Foreign Medical Graduate (FMG). The petitioner cleared the FMGE on 24 March 2023, following which the National Board of Examinations in Medical Sciences (NBEMS) issued a Screening Test Pass Certificate (STPC) to her on 24 March 2023.

11. The petitioner, thereafter, applied to the Delhi Medical Council (DMC) for being permitted provisionally to register as a practising doctor, on 25 March 2023.

12. At this stage, the DMC addressed various communications to the NMC requiring that the eligibility of the petitioner to have undertaken her MBBS as FMGE was required to be clarified.

13. The NMC, thereafter, issued a letter to the petitioner on 30 January 2024, and a corrigendum thereto on 7 February 2024. Specific reference was contained, in the said communications, to the CBSE guidelines which required a candidate, attempting a subject involving practical work, to obtain 33% marks in theory, 33% marks in practical and at least 33% marks in the aggregate to be treated as having qualified in that subject. Alongside, the NMC also referred to Regulation 5(5)(i) of the Graduate Medical Education Regulations 1997 (GME Regulations), which reads thus:
In case of admission on the basis of qualifying examination under clause (1) based on merit, candidate for admission to MBBS course must have passed in the subjects of Physics, Chemistry, Biology & English individually and must have obtained a minimum of 50% marks taken together in Physics, Chemistry, and Biology at the qualifying examination as mentioned in clause (2) of regulation 4. In respect of candidates belonging to Scheduled Castes, Scheduled Tribes or Other Backward Classes, the marks obtained in Physics, Chemistry and Biology taken together in qualifying examination be 40% instead of 50% as above.

14. On the ground that the petitioner was not qualified for issue of Eligibility Certificate in the first instance, enabling her to obtain her MBBS from abroad as an FMG, the communication dated 30 January 2024 invoked Regulation 5 of the Eligibility Certificate Regulations 2002 (the EC Regulations) which permitted cancellation of eligibility certificate already granted if it was found, later, that information furnished by the candidate was incorrect or false, and consequent debarment, of the candidate, from appearing in the FMGE.

15. It is this communication that the petitioner has sought to challenge by way of the present writ petition.

16. Mr. Vishal Raj Sehijpal, learned Counsel for the petitioner, has submitted that the impugned letter has resulted in effacing of over 10 years of the petitioners academic life, as it sets the clock back to a stage when the petitioner was contemplating travelling abroad to undertake her MBBS.

17. He submits that the petitioner had clearly disclosed, in her application form, while applying for grant of eligibility certificate, the marks obtained by her in Class XII. In the absence of any concealment by the petitioner, he submits that it would be completely unjust and inequitable to relegate the petitioner, at this point, to the stage when she had initially sought issuance of the Eligibility Certificate by holding that she was not entitled for issuance of the Eligibility Certificate itself.

18. Mr. Sehijpal has also drawn my attention to the second part of Regulation 5(5)(i) of the GME regulations, which reduces the aggregate qualifying marks in Physics, Chemistry and Biology taken together, in the case of candidates belonging to the Other Backward Classes (OBC) from 50% to 40%. He submits that his client is an OBC candidate and is, therefore, entitled to the benefit of this clause.

19. This case is eerily similar to W.P. (C) 11649/2021 (Nitin Thomas v. NMC), which was decided by this Bench on 13 February 2024. The similarity in circumstances is startling. In that case too, the petitioner had an FT (Failed in Theory) marked against his physics paper. The overall grading granted against the Physics paper in that case, too, was E. In that case, too, the petitioner did not place on record the reverse of the marksheet issued to him by the CBSE which clearly indicated that the Grade E meant that the student had failed in that particular paper. In that case too, the petitioner did not file his application form with the writ petition. In that case, too, the petitioner, in his application form, failed to mention alongside the marks awarded to him in each of the subjects of Class XII as to whether he had passed or failed in the said subject.

20. Apart from the startling factual coincidences between that case and this, the law enunciated by this Court in Nitin Thomas applies to the facts of the case in hand.

21. The plaintiff was clearly ineligible for being awarded the eligibility certificate for travelling abroad to pursue her primary medical education/MBBS, as the student was required to have passed in each of the subjects Physics, Chemistry, Biology and English. The petitioner had failed in Biology.

22. Mr. Sehijpals reliance on the second part of Regulation 5 (5)(i) of the GME regulations does not help the petitioners case.

23. The first part of Regulation 5 (5)(i) requires cumulative satisfaction of two criteria for a student to be entitled to grant of an eligibility certificate to pursue her/his primary medical qualification abroad. The first is that the student must have passed in the subjects Physics, Chemistry, Biology and English individually. The second is the student must have obtained a minimum of 50% marks taken together in Physics, Chemistry and Biology in her/his XIIth class examination.

24. The second part of Regulation 5(5)(i) relaxes the rigour of only the second of the aforesaid two criteria, which is of the minimum percentage of marks required to be obtained in Physics, Chemistry and Biology taken together. While, for an unreserved candidate, the candidate is required to obtain 50% marks in Physics, Chemistry and Biology taken together, candidates belonging to the SC/ST/OBC categories would be required to obtain only 40% aggregate marks in Physics, Chemistry and Biology taken together.

25. That does not, in any manner, relax the rigour of the first criterion, which requires the candidate to have passed, individually, in Physics, Chemistry, Biology and English.

26. As I have observed in Nitin Thomas, no equities can be pleaded by the petitioner for the simple reason that she had clearly omitted to mention, in her application form while applying for grant of Eligibility Certificate whether she had passed or failed in each individual subject. The application form specifically required her to do so. It is no answer for the petitioner to contend that, with the application form, she had attached her XIIth class marksheet.

27. The requirement of the candidate having indicated, specifically against each subject, as to whether she/he passed or failed in that subject, serves a public purpose. It enables the authority issuing the Eligibility Certificate to immediately note, at a glance, whether the candidate is entitled to the Certificate. Had the petitioner, in her application form for grant of Eligibility Certificate, specifically mentioned that she had failed in the Biology paper, there was no question of the Eligibility Certificate having being issued to her in the first place. Having obtained the Eligibility Certificate by concealing this fact, the petitioner cannot plead any equities in order to seek relief from this court. The case would squarely fall, even for this reason, within the peripheries of Regulation 5 of the EC regulation as well, and the action taken by the NMC in terms of Regulation 5 cannot in any manner be faulted.

28. Little do we realize, when we commit an indiscretion, when it would come back to haunt us.

29. It is also a matter of concern that the petitioner did not choose to annex, with the present writ petition as also with W.P. (C) 12426/2023, the application form submitted by her at the time of applying for eligibility certificate. It is difficult for this Court to believe that this was an innocent omission. If it was an innocent omission, the NMC having placed that application form on record in the counter affidavit filed in W.P. (C) 12426/2023, the petitioner should have at the least placed the application form on record with the present writ petition. That has not been done. Prima facie, the omission is deliberate, in that it is not immediately apparent that the petitioner had, in her application form, omitted to mention that she had failed in her physics paper.

30. This case must, therefore, meet the same fate as visited in Nitin Thomas.

31. The writ petition is accordingly dismissed without any order as to costs.

C. HARI SHANKAR, J.
MARCH 4, 2024
dsn
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WP(C) 3259/2024 Page 1 of 20